Fifty Years of the English Constitution, 1830-1880

the chief features of which were that Appropriation Bills were not to contain any foreign matter, and that, in the case of continued disagreement between the Houses, the Governor might dissolve the Council at any time not within nine months of the legal expiration of the Assembly.

The Assembly proposed the reference of the rival Reform Bills prepared in the Council and in the Assembly to the general body of qualified electors; the result of a poll to be considered final, and to be carried into law by both Houses.

One difficulty which throughout has haunted the whole of this controversy has been the alleged parallelism of the Legislative Council to the British House of Lords. In his speech on opening the Session of 1878, the Governor, Sir G. F. Bowen, well said that the Constitution was intended to be fashioned on the model of the British Constitution, but 'unhappily, the attempt • to embody in comparatively rigid Statute Law the 'elasticity inherent in the principles and practice of 'that Constitution had not been completely successful.' The fact that the Council distinctly represents property, and the property of only a few, affords it a distinct and special claim to resist apprehended invasions of property rights with a resoluteness for which no suitable analogy can be found in the circumstances and temper of the House of Lords. Confining itself to this function, the Council will properly guard against all precipitate or selfish legislation which might proceed from the nonmoneyed classes; but if it affects to stem legislation by interposing an absolute veto upon the will of a highly democratised majority, no mere formal appeal to the precedent of a House of Lords, the members of which are
by long tradition, habitual contact, and an assemblage of unique moral and political conditions, in practical harmony with the bulk of the members of the House of Commons, can save it either from extinction or from an ignominious defeat which would reduce it to the status of the Second Chambers of some of the recently constituted Continental Governments.

A recent writer 1 has concisely described the situation by saying that' the elements of the Parliamentary 'Government at present existing in Victoria are in'capable of supporting a bi-cameral system strictly 'analogous to Lords and Commons.' Many suggestions have been made for meeting the difficulties of the position, besides those contained in the proposals of the Assembly and the Council, as embodied in their rival Bills for constitutional reform. It has been suggested that the Assembly might be made to include elements more distinctively representative of property; that in cases of dispute between the Houses, Conferences should take place with greater frequency and facility, and of a more organised kind, than at present feasible; that in such cases of dispute the Houses should combine, so as to form one body, for the purpose of voting, but not debating, on the point at issue, and that some large majority, say two-thirds, should be needed to carry a measure; that' plebiscites' should be more frequently resorted to, or that the Council should be re-elected at shorter intervals, so as to make it less of a permanent and aristocratic body. It is observable that every one of these proposals is destructive of what is the essence of a true bi-cameral system, the independence of the two

Chambers. The logical consequence of working out any of the above proposals, or any like them, is really that of substituting a single legislative body for two co-operating or conflicting ones. It is hopeless to expect that the rich few can finally control the many who are both rich and poor. With whatever cataclysms or shocks the artificial obstacles to the ascendency of the will of the numerical majority may be overthrown, overthrown they must be, as M. de Tocqueville long ago explained in the parallel case of the progress of democracy in the United States of America. The true and last lesson of democracy is, that a man's life consisteth not in the abundance of the things that he possesseth.

Before leaving the topic of Colonial Legislatures, it must be noticed that it has recently been laid down that the jurisdiction of such Legislatures extends no further than three miles from the shore. In 1855 the Law Officers of the Crown gave this as their opinion, when, referring to British Guiana, they said : * We con'ceive that the Colonial Legislature cannot legally 'exercise its jurisdiction beyond its territorial limits— 'three miles from the shore; or, at the utmost, can only 'do this over persons domiciled in the Colony, who may 'offend against its ordinances even beyond those limits, 'but not over other persons.'1

2. The history of the Government of India affords a good and memorable instance of the mode in which Parliament may gradually assume the direct and supreme government of every part of the British Dominions. This history comprehends the successive phases of (1) facilitation of trade, (2) organisation of government, (3), the reconstitution of the East India Company as a 1 Forsyth's Catet and Opinions, p. 24.

purely political body, and (4) the transfer of the Government of India from the Company to the Crown as controlled by Parliament.

The history commences with the Charter of William III. incorporating a second East India Company, dated September 5, 1698. The Charter purported to be issued in pursuance of an Act 'for raising a sum not 'exceeding two millions upon a fund for payment of 'Annuities after the rate of eight pounds per centum 'per annum, and for settling the Trade to the East 'Indies.' For a period of nearly eighty years, the Charters which were granted, as well as the Statutes which occasionally supplemented or enforced them, dealt almost exclusively with trade; and the organisation of the Company as a Joint-Stock Trading Association was the purpose of the so-called 'Regulating Act' of 1773.1

So soon as the victories of Clive, and treaties with the native Princes, placed the Company in the actual possession of territorial acquisitions, Parliament passed Statutes for the purpose of confirming the Company in that possession for limited periods of years. Such Statutes were the 7th George III. cap. 57, and the 9th George III. cap. 24, which vested the acquired territory and revenues of the Company in them for periods respectively of two and of five years.

The first effective Parliamentary aggression on the independence of the Company—and, to some extent, also on the Prerogative of the Crown—was the passing of what is called the 'Regulating Act.' This Act recites that 'the several powers and authorities granted by 'Charters to the United Company of Merchants of 'England trading to the East Indies have been found, » 13 Geo. in. cap. 63.

The Regulating Act.

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'by experience, not to have sufficient force and efficacy * to prevent various abuses which have prevailed in the 'government and administration of the affairs of the said 'United Company, as well at home as in India, to the 'manifest injury of the public credit, and of the com'mercial interests of the said Company.' The Act, in its 13th section, further recites that King George II. had, by his Letters Patent, granted a Charter constituting Courts of Civil, Criminal and Ecclesiastical Jurisdiction in Madras, Bombay, and Bengal, and gives power to 'His 'Majesty, by Charter or Letters Patent under the Great 'Seal of Great Britain, to erect and establish a Supreme 4 Court of Judicature at Fort William aforesaid, to consist 'of a Chief Justice and three other Judges, being barris'ters in England or Ireland, of not less than five years' 'standing, to be named from time to time by HisMajesty, 'his heirs and successors.' This Statute was an important step in the process of consolidating the dominion of the Company as a territorial Government, and of bringing that Government under the direct control of Parliament. A still more decisive step in the same direction was the passing of the Act of 1833 (3 and 4 William IV. cap. 85). This Act, while confirming the Company in the possession of the territorial acquisitions and revenues then held by them for another twenty years, finally abolished the commercial character and operations of the Company, and converted it into a purely political body, having a delegated authority from Parliament to govern the British dominions in India. By the third section of the Act the exclusive right of trading with the dominions of the Emperor of China, and of trading in tea, was to cease in the following year. The fourth section enacted that the Company should ' with all con